Espionage as a Sovereign Right Under International Law and Its Limits

Abstract

In this article I propose a new approach to the scholarly debate on the international law of peacetime espionage. The paper first introduces the notion of a "Jus Ad Explorationem", or a right to spy, as a sovereign right within the domaine réservé of States. I contend that the existence of the right finds its underpinning in both historical and contemporary international law. Moreover I argue that by acknowledging spying as an acta jure imperii, a power exclusively granted to sovereign nations, we would finally be able to move away from the paralyzing debate as to the lawfulness of spying and begin drafting meaningful regulations on the way States enjoy their right to spy.

The ILSA Quarterly is the official publication of the International Law Students Association, and this work was produced as part of the author's broader role in drafting the compromis for the 2016 Jessup International Law Moot Court Competition. The year's problem was titled "The Case Concerning the Frost Files", and focused on the international law surrounding espionage, mass surveillance, and cyber operations. The final round of the 2016 Jessup case, which paralleled the 110th ASIL Annual Meeting, was judged by ICJ judges Hisashi Owada, Christopher Greenwood, and Bruno Simma.

Keywords: Espionage, Intelligence, International Law, Foreign Relations, Diplomacy